Social media passwords off-limits to N.J. employers during interview and after hire

By Andrew George,
December 2, 2013 at 3:00 AM

Employees throughout New Jersey went to work today with new rights regarding how much their employers can monitor their personal social media accounts.

No longer can employers ask for private passwords — during interviews or employment — as the state became the 12th in the nation to implement a law regulating social media privacy in the workplace.

How this will impact New Jersey business remains to be seen — and depends on whom you ask.

Stefanie Riehl, an assistant vice president with the New Jersey Business and Industry Association, said the law benefits employers as much as employees because it starts to define the rules of the game.

Riehl said the bill finds the "right balance" between protecting workers' privacy and preserving employers' interests.

One of the better additions to the legislation was the provision that employers have the right to conduct an investigation if a worker is transferring proprietary or confidential information on his or her personal social media account, Riehl said.

"I think it's really important that you have that protection in there," she said.

Scott Vernick, a privacy lawyer with the Philadelphia-based Fox Rothschild, said the fact the bill puts the responsibility on companies could be troublesome.

Vernick said that the law came as a reaction to stories of people who were either not getting hired or losing their jobs because of content on their private social media accounts. But while he thinks the impetus behind the law "makes perfect sense" from an employee's standpoint, he notes that it does "put the burden on the employer now to have new policies in place."

He adds that it is also an attempt to define boundaries that grow murkier by the day.

"(The law) tries to define what the rules of the road are," Vernick said. "We got into this predicament because the lines between personal and business are probably more blurred today than they ever (were)."

The law, which was signed by Gov. Chris Christie in August after the Legislature approved and returned a measure he conditionally vetoed, includes accounts for all popular social media platforms, including Facebook, Twitter and Instagram. The bill had bipartisan support.

Penalties will be imposed on employers who request the information. Under the law, a fine of $1,000 will accompany the first offense with fines of $2,500 for each additional violation.

Employers still will be allowed to view anything that is publicly displayed and may conduct investigations into social media use on an employee's personal account if they receive specific information about workplace misconduct or the unauthorized transfer of a company's proprietary information.

But what constitutes specific information will surely be a debatable topic and one to watch going forward, Vernick said.

For employees, too.

Even though they have some protection from the prying eyes of their higher ups, employees still need to watch what they post on Twitter, Facebook and Tumblr, said Lisa Fried-Grodin, a partner with the labor and employment firm Meyers Fried-Grodin, during a recent panel discussion about the new law.

"This does not make it safe for you to say whatever you want and not get fired. That's not what this law does," Fried-Grodin said. "This is not a safe haven that you can go out and say anything damaging on Facebook and you're protected."

Vernick, Riehl and Fried-Grodin all agree on one thing: If employers haven't already updated or revisited their social media and personal device policies, now would be a good time to start.

"Not only do you need to have a policy, but you need to make sure that it's reflecting the current developments in the law," she said.

"You're in dangerous territory if you attempt this on your own without the advice of an employment attorney."

Vernick said now is the time to act.

"Every employer in New Jersey should take a look at those policies, dust them off and make sure that they comply," Vernick said.

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Andrew George

Andrew George covers the Statehouse from NJBIZ's Trenton bureau. Born and raised in N.J., Andrew has also spent time as a reporter in D.C., Texas and Pa. His email is andrewg@njbiz.com and he is @AndrGeorge on Twitter.

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